IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-SA-00104-SCT
STATE OF MISSISSIPPI AND J. K. STRINGER, JR., IN HIS OFFICIAL CAPACITY AS STATE FISCAL OFFICER, AND JIM HOOD, ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, EX REL. THE STATE OF MISSISSIPPI
v.
THE BOARD OF LEVEE COMMISSIONERS FOR THE YAZOO-MISSISSIPPI DELTA
DATE OF JUDGMENT: 12/20/2004 TRIAL JUDGE: HON. WILLIAM G. WILLARD, JR. COURT FROM WHICH APPEALED: COAHOMA COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: MEREDITH McCOLLUM ALDRIDGE HAROLD EDWARD PIZZETTA, III ATTORNEYS FOR APPELLEE: WILLIAM F. GOODMAN, JR. JOHN G. CORLEW GEORGE R. FAIR JOHN P. HENSON RICHARD G. NOBLE FRANK OWEN CROSTHWAIT, JR. NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED - 06/15/2006 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE COBB, P.J., DICKINSON AND RANDOLPH, JJ.
RANDOLPH, JUSTICE, FOR THE COURT:
¶1. Section 7(4) of House Bill 1279 (2004) reads:
During the period beginning upon July 1, 2004, and through June 30, 2005, the Board of Levee Commissioners of the Yazoo-Mississippi Delta Levee District, upon demand of the State Fiscal Officer, shall transfer to the State Treasurer a sum or sums not exceeding a total of Five Million Dollars ($5,000,000), which shall be deposited into the Budget Contingency Fund. On July 1, 2004, J.K. Stringer, Jr., the State Fiscal Officer, made demand upon the Board of
Levee Commissioners of the Yazoo-Mississippi Delta Levee District (“Board”) for
$5,000,000.00 pursuant to Section 7(4). Thereafter, the Board filed suit in the Coahoma
County Chancery Court. In seeking a declaration that the legislation was unconstitutional
and an injunction preventing its enforcement, the Board averred that: (1) Section 7(4) was
unconstitutional because it had not been properly publicized or referred to committee as
required by Article 11, Section 234 of the Mississippi Constitution; (2) the Legislature did
not have the authority to require the transfer of Board funds and, therefore, Section 7(4)
violated Article 11, Section 227 et seq. of the Mississippi Constitution; (3) the legislation
violated the separation of powers doctrine in Article 1, Sections 1 and 2 of the Mississippi
Constitution by “infring[ing] and encroach[ing] upon the constitutionally invested powers
of the Levee Board”; and (4) the legislation violated Article 3, Section 17 of the Mississippi
Constitution and the 14 th Amendment of the United States Constitution by directing the
taking of Board property without due compensation or due process.
¶2. The learned chancellor agreed with the Board and granted summary judgment in their
favor, declaring Section 7(4) of House Bill 1279 unconstitutional and enjoined the State from
enforcing the legislation. From that final judgment, the State appeals.
FACTS
¶3. Under Article 11 of the Mississippi Constitution of 1890, “maintenance of a levee
system in the State was made mandatory.” Yazoo & M.V.R. Co. v. Board of Mississippi
Levee Com’rs, 188 Miss. 889, 195 So. 704, 705 (1940). Therefrom, two levee districts were
2 created by the state legislature: the Mississippi Levee District and the Yazoo-Mississippi
Delta Levee District. See id. “The Yazoo-Mississippi Delta levee district comprises all of
the northern counties of the state which are subject to overflow from the Mississippi river.”
Ham v. Board of Levee Com’rs for Yazoo-Mississippi Delta, 83 Miss. 534, 35 So. 943
(1904). The Levee Board of the Yazoo-Mississippi Delta Levee District itself “was
originally created by chapter 168, Laws of 1884, and was recognized and continued by
section 227 et seq. of the state Constitution.” Clark v. Miller, 142 Miss. 123, 105 So. 502,
505 (1925). Article 11, Section 232 of the Constitution of 1890 specifically provides that,
“[t]he commissioners of said levee district shall have supervision of the erection, repair, and
maintenance of the levees in their respective districts ... .” Miss. Const. art. 11, Section 232
(emphasis added). Article 11, Section 237 states, “[t]he legislature shall have full power to
provide such system of taxation for said levee districts as it shall, from time to time, deem
wise and proper.” Miss. Const. art. 11, Section 237 (emphasis added). Article 11, Section
234 mandates that:
[n]o bill changing the boundaries of the district, or affecting the taxation or revenue of the Yazoo-Mississippi Delta Levee District ... shall be considered by the legislature unless said bill shall have been published in some newspaper in the county in which is situated the domicile of the board of levee commissioners of the levee district to be affected thereby, for four weeks prior to the introduction thereof into the legislature; and no such bill shall be considered for final passage by either the senate or house of representatives, unless the same shall have been referred to, and reported on, by an appropriate committee of each house in which the same may be pending; and no such committee shall consider or report on any such bill unless publication thereof shall have been made as aforesaid.
Miss. Const. art. 11, Section 234 (emphasis added).
3 ¶4. House Bill 1279 was initially introduced on February 23, 2004 and thereafter referred
to the Select Committee on Fiscal Stability of the House of Representatives (“Select
Committee”). On February 27, 2004, it was transmitted to the Senate where it was referred
to the Appropriations Committee. Section 7(4) did not appear in the bill initially referred to
either the Select Committee of the House of Representatives or the Appropriations
Committee of the Senate. Instead, Section 7(4) first appeared in the Conference Report
negotiated by a six (6) member Conference Committee of the House of Representatives and
Senate which was filed and adopted on May 9, 2004. On May 14, 2004, the state legislature
signed and enrolled House Bill 1279, which was thereafter signed by the Governor, to
become effective on July 1, 2004.1
¶5. On June 24, 2004, the Board (“Appellees”) filed a Complaint in chancery court
against the State of Mississippi and J.K. Stringer, Jr. as the State Fiscal Officer,
(“Appellants”) seeking a judgment declaring Section 7(4) unconstitutional and enjoining the
State from confiscating any revenue from the Yazoo-Mississippi Delta Levee District.
Substantively, the Board alleged that Section 7(4) violated: (a) Article 11, Section 234 of
the Mississippi Constitution (failure to publish Section 7(4) in some newspaper in the county
in which is situated the domicile of the Board, i.e. Coahoma County, for four (4) weeks prior
to its introduction in the Legislature; failure, upon information and belief, to have Section
7(4) referred to, or reported on by, an appropriate committee of either the House of
Representatives or the Senate); (b) Article 11, Section 227, et. seq. and Article 1, Section 2
1 See paragraph 1 for the text of Section 7(4) of House Bill 1279 (2004).
4 of the Mississippi Constitution (Section 7(4) infringes and encroaches upon the
constitutionally invested powers of the Board by delegating to the State Fiscal Officer the
power to confiscate funds under the Board’s exclusive control; also, Section 7(4) improperly
authorizes the use of Board funds for non-levee purposes); and (c) Article 3, Section 17 of
the Mississippi Constitution and the Fourteenth Amendment of the United States Constitution
(Section 7(4) directs the taking of Board property without due compensation or due process).
¶6. On July 1, 2004, pursuant to Section 7(4), the State Fiscal Officer made demand upon
the Board for $5,000,000.00. On July 30, 2004, the State answered the Complaint, denying
the Board’s allegations and affirmatively asserting that, “[the Board] cannot overcome the
strong presumption of validity of Section 7(4) of House Bill 1279. See, e.g., Edwards v.
State, 800 So. 2d 454, 460-61 (Miss. 2001).” The Attorney General filed a Motion to
Intervene,2 which was granted on August 9, 2004.
¶7. On September 9, 2004, the Board filed a Motion for Summary Judgment. The motion
repeated the substantive allegations of the Complaint and was based in part upon affidavits
of Sykes Sturdivant and Steve Stewart. Sturdivant, the President of the Levee Board for the
Yazoo-Mississippi Delta Levee District since January 1997, stated that the Board was funded
2 Specifically, the Attorney General stated:
Plaintiff’s challenge to Section 7(4) ... is such a constitutional challenge described in Rule 24(d) [of the Mississippi Rules of Civil Procedure]. Because Miss. Code Ann. Section 7-5-1 provides that the Mississippi Attorney General is the chief legal officer and advisor for the State of Mississippi, the Attorney General respectfully seeks permission to intervene in this action for the limited purpose of arguing the constitutionality of the challenged legislation and to rebut Plaintiff’s constitutional challenge.
5 by revenues generated from properties within the Levee District and had never, to his
knowledge, received funds from the State. He further submitted that the funds available to
satisfy Section 7(4) were revenues generated from properties within the Levee District and
were held as reserves for levee emergencies pursuant to the long-range plans adopted by the
Board. As such, he opined that if required to comply with Section 7(4), the Board might be
forced to tax lands within the Levee District which were not being taxed at the time. Steve
Stewart was the editor and publisher of the Clarksdale Press Register, the only newspaper
published or located in Coahoma County. He stated that, “[n]either Section 7(4), nor House
Bill 1279, in its entirety, has ever been published in the Clarksdale Press Register.”
¶8. On October 29, 2004, the State filed a Cross-Motion for Summary Judgment and
Opposition to Plaintiff’s Motion for Summary Judgment. Regarding Article 11, Section 234,
the State asserted:
to the extent it is relevant, Section 234 contains an explicit recognition of the Legislature’s authority to enact bills affecting and controlling the revenue of levee boards. Furthermore, the Levee Board’s contention that Section 7(4) should be struck down because of the Legislature’s alleged noncompliance with Section 234's procedural requirements presents a non-justiciable question.
As to Article 11, Section 227, et seq., the State contended:
[t]he Legislature has inherent authority over public funding matters, limited only by express prohibition. The Legislature is endowed with and [has] previously utilized its express authority and control over the Levee Board by virtue of constitutional and statutory provisions. Because there is no prohibition on the Legislature’s inherent authority to enact Section 7(4), and because the Legislature has express control over the public funds of the Levee Board, Section 7(4) in no way violates Article 11, Section 227 et seq.
6 The State further provided that Section 7(4) did not violate Article 1, Section 2 because,
“[t]he Levee Board’s status as part of the executive branch makes its funds, which are raised
pursuant to State law, subject to the control of the Legislature.” Finally, the State averred
that Section 7(4) did not violate either Article 3, Section 17 of the Mississippi Constitution
or the Fourteenth Amendment of the United States Constitution because “the Legislature’s
proper control of public funds is not a ‘taking’ within the meaning of these constitutional
provisions.”
¶9. On December 20, 2004, the chancery court granted summary judgment for the Board,
declaring Section 7(4) “unconstitutional and unenforceable at law” and “enjoin[ing] [the
State] from taking any further steps to enforce that purported statutory enactment.” The
chancellor determined that historically, “[e]xcept for perhaps an appropriation for use in
guarding the levees (see Chapter 61 of the Laws of 1918), the Levee Board has not received
any funding from the State of Mississippi either for the erection, repair, maintenance, and
management of the levees within the Levee District or for any other purpose.” 3 Moreover,
the chancellor found existing case law to establish “that the Levee Board is vested ‘with the
plenary authority’ to deal with the erection, maintenance and repair of the levee system in
3 Section 2 of Chapter 61, Laws of 1918 - House Bill No. 33 provided:
That from the amount appropriated, for the year 1918, the sum of ... $30,000 ... may be used, if demand is made therefor, by the levee commissioners for the Yazoo-Mississippi delta levee district, and for the Mississippi levee district for the purpose of guarding the levees of said district, in case of high water. The sums so expended to be divided between the two districts. The Mississippi levee district to receive two thirds and the Yazoo-Mississippi delta levee district, one third.
7 [its] discretion for purposes of protecting the property of its district from loss and destruction.
Ham, 35 So. at 946.” As such, the chancellor concluded that the Board “necessarily” has
“authority over and control of, Levee District revenues, including the use of such revenues.
See Bobo [v. Board of Levee Com’rs for Yazoo-Mississippi Delta], [92 Miss. 792, 46 So.
819,] 823 [(1908)] ... see also National Surety Co. v. Miller, [155 Miss. 115,] 124 So. 251,
256 (1929) ... .” Because the Legislature may only address aspects of the levee system to the
extent that “‘it does not infringe upon the proper exercise of powers granted the Levee
Commissioners by the Constitution’ ... Franklin v. Ellis, [130 Miss. 164,] 93 So. 738, 740
(1922)” the chancellor found that Section 7(4)’s mandated transfer of Board funds to the
State Treasurer for general use constituted a “flagrant violation of Article 11.” 4 Furthermore,
the chancellor determined that directing Board funds for non-levee purposes violated “the
4 The chancellor specifically found:
First, any arguable power of the Legislature over the financial affairs of state agencies or political subdivisions, such as counties and municipal corporations has no application to the Levee Board. The Levee Board is in effect a constitutionally created body. It is not a creature of the Legislature like state agencies or its political subdivisions. ... Second, the Supreme Court has held on numerous occasions that the Legislature may only legislate with respect to the levee system to the extent not ‘otherwise provided by the Constitution’ and only ‘so long as it does not infringe upon the proper exercise of powers granted the Levee Commissioners by the Constitution’ or ‘trench upon any constitutional rights.’ E.g., Clark, 105 So. at 505; Franklin, 93 So. at 740; Bobo, 46 So. at 824. ... Article 11 does not, as the State argues, provide for legislative control over the revenues of the Levee Board. Section 237 merely gives the Legislature the power to provide a system of taxation. ... The Levee Board has its own constitutionally granted power to levy taxes. See Yazoo & M.V.R. Co., 195 So. at 706.
(Emphasis added).
8 prohibition of Article 1, Section 2 of the Constitution, prohibiting one department from
exercising powers properly belonging to another.” 5 Finally, the chancellor held that Section
7(4) was also unconstitutional as it violated Article 11, Section 234.6 From that ruling comes
this appeal.
STANDARD OF REVIEW
¶10. Summary judgment is required under Miss. R. Civ. P. 56 if the evidence in the record
shows that no genuine issue of material fact exists, and the moving party is entitled to
judgment as a matter of law. See Miss. R. Civ. P. 56(c); Brown v. Credit Center, Inc., 444
So. 2d 358, 362 (Miss. 1983). In analyzing such a determination, this Court “review[s] de
novo the granting or denying of summary judgment and examine[s] all the evidentiary
matters before us - admissions in pleadings, answers to interrogatories, depositions,
affidavits, etc.” Coleman Powermate, Inc. v. Rheem Mfg. Co., 880 So. 2d 329, 332 (Miss.
2004). After viewing all the evidence “in the light most favorable to the party against whom
the motion has been made,” summary judgment will be upheld only when “the moving party
is entitled to judgment as a matter of law.” Pitts v. Watkins, 905 So. 2d 553, 555 (Miss.
5 The chancellor stated, “[t]he Legislature is the legislative branch. See Article 4, Section 33. The Levee Board belongs to the executive branch. See Haley v. State, 108 Miss. 899, 67 So. 498 (1915).” 6 Specifically, the chancellor determined:
Section 7(4) clearly ‘affects’ the revenue of the Levee District; i.e. funds generated from Levee District property. It may also affect the taxation of the Levee District. If required to comply with Section 7(4), the Levee Board may again be required to tax the property located in the Levee District to maintain its current level of operations and reserves. It is thus precisely the type of law that Section 234 ‘had in mind.’ See Bobo, 46 So. at 823.
9 2005) (quoting Aetna Cas. & Sur. Co. v. Berry, 669 So. 2d 56, 70 (Miss. 1996)). Both
parties in this case agree there is no genuine issue of material fact. Because “[s]tatutory
interpretation is a matter of law which this court reviews de novo,” Wallace v. Town of
Raleigh, 815 So. 2d 1203, 1206 (Miss. 2002), the issue under de novo review is whether
Section 7(4) was unconstitutional, such that the Board was entitled to judgment as a matter
of law.
ISSUES
¶11. The State raised three issues in its initial brief:
1. Did the chancery court err in holding that Section 7(4) of House Bill 1279 (2004) violates Article 11 and Article 1, Section 2 of the Mississippi Constitution of 1890 when the Legislature has both inherent and specific authority to enact Section 7(4)? 2. Did the chancery court err in considering whether the Legislature complied with the procedures of Article 11, Section 234 of the Mississippi Constitution of 1890 when the question of compliance is beyond judicial review? 3. Did the chancery court err in holding that Section 7(4) of House Bill 1279 violates Article 3, Section 17 of the Mississippi Constitution of 1890 and the 14 th Amendment to the United States Constitution when the Levee Board has no property rights in the funds at issue?
The Board posits in its brief that the issues are more accurately stated as follows:
1. Whether Section 7(4) of House Bill 1279 (2004), purporting to confiscate Five Million Dollars of Levee Board funds for non-levee purposes, violates Article 11 of the Mississippi Constitution of 1890 by impermissibly infringing upon the Levee Board’s constitutionally vested plenary authority over the levee system and the revenues thereof? AND/OR 2. Whether Section 7(4) of House Bill 1279 (2004) violates Article 3, Section 17 of the Mississippi Constitution of 1890, and/or denies the due process of law guaranteed by the 14th Amendment to the Constitution of the United States, by purporting to take the Levee Board’s constitutionally protected property without compensation? ALTERNATIVELY
10 3. Whether, in any event, Section 7(4) of House Bill 1279 (2004) is unconstitutional because the Legislature did not honor the legislative due process prerequisites (newspaper publication and committee referrals and reports) mandated by Article 11, Section 234 of the Mississippi Constitution of 1890?
¶12. In its reply brief the State restated the issues as follows:
1. Has the Levee Board demonstrated - after resolving all doubts in favor of constitutionality - that Section 7(4) violates the clear language of the Mississippi Constitution? 2. Has the Levee Board demonstrated that this Court ... may review the Legislature’s compliance with procedural provisions (i.e. Article 11, Section 234 of the Mississippi Constitution)?
ANALYSIS
¶13. A “very heavy burden” rests upon this Court before it may find a statute
unconstitutional. Moore v. Board of Sup’rs of Hinds County, 658 So. 2d 883, 887 (Miss.
1995) (“This Court has charged itself with the duty to examine statutes very carefully before
finding them unconstitutional.”). As this Court stated in Pathfinder Coach Division of
Superior Coach Corp. v. Cottrell, 216 Miss. 358, 62 So. 2d 383, 385 (1953):
[i]n the case of Miss. State Tax Commission v. Flora Drug Co., 167 Miss. 1, 148 So. 373, 376, the court quoted with approval from Sutherland on Statutory Construction, Vol. I, Sec. 65, 2d ed., as follows: ‘Statutes cannot be declared invalid on the ground that they are unwise, unjust, unreasonable, immoral, or because opposed to public policy, or the spirit of the Constitution.’ And in Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 803, 115 A.L.R. 1436, the Court said: ‘In determining whether an act of the Legislature violates the Constitution, the courts are without the right to substitute their judgment for that of the Legislature as to the wisdom and policy of the act and must enforce it, unless it appears beyond all reasonable doubt to violate the Constitution.’
The underlying consideration behind this position is that, “[w]hen a party invokes our power
of judicial review, it behooves us to recall that the challenged act has been passed by
11 legislators and approved by a governor sworn to uphold the selfsame constitution as are we.”
State v. Roderick, 704 So. 2d 49, 52 (Miss. 1997). Therefore, “under Mississippi law a party
challenging the constitutionality of a statute must prove unconstitutionality beyond a
reasonable doubt.” Cities of Oxford, Carthage, Starkville and Tupelo v. Northeast Elec.
Power Ass’n, 704 So. 2d 59, 65 (Miss. 1997) (citing Secretary of State v. Wiesenberg, 633
So. 2d 983, 989 (Miss. 1994); Miss. Power Co. v. Goudy, 459 So. 2d 257, 263 (Miss. 1984)).
In other words:
one who assails a legislative enactment must overcome the strong presumption of validity and such assailant must prove his conclusions affirmatively, and clearly establish it beyond a reasonable doubt. All doubts must be resolved in favor of validity of a statute. If possible, a court should construe statutes so as to render them constitutional rather than unconstitutional if the statute under attack does not clearly and apparently conflict with organic law after first resolving all doubts in favor of validity.
Id. (citing Loden v. Miss. Public Service Comm’n, 279 So. 2d 636, 640 (Miss. 1973)
(citations omitted)). Moreover, “to state that there is doubt regarding the constitutionality
of an act is to essentially declare it constitutionally valid.” Moore, 658 So. 2d at 887 (citing
Ivy v. Robertson, 220 Miss. 364, 370, 70 So. 2d 862, 865 (1954)). Therefore, Section 7(4)
was properly adjudged unconstitutional only if it directly conflicted with “the clear language
of the constitution.” PHE, Inc. v. State, 877 So. 2d 1244, 1247 (Miss. 2004).
I. Whether the Levee Board demonstrated - after resolving all doubts in favor of constitutionality - that Section 7(4) violates the clear language of the Mississippi Constitution.
¶14. “Under Section 227 et seq. of the Constitution, this levee district is in the same
situation as if it had been originally created by the Constitution ... .” Yazoo & M.V.R., 195
12 So. at 706. Given the “broadness of the terms employed in granting powers to the [Levee
Board]” under Article 11, this Court has determined that:
it is plain that it was the intention to vest the boards of levee commissioners with plenary authority to deal with the ‘erection, maintenance, and repair’ of the levee system at their discretion, for the purpose of protecting the property of their respective districts from loss and destruction. The act incorporating the board of levee commissioners of the Yazoo-Mississippi Delta expressly directs that it shall be construed as ‘an exercise by the Legislature of all the powers appertaining to it necessary to carry into effect the intent of said act,’ and, as stated, this legislative enactment is practically embodied in our organic law. The terms employed in the Constitution, by any reasonable interpretation, convey the evident design of clothing levee boards with the power to ‘erect,’ ‘construct,’ and ‘locate’ levees ... .
Ham, 35 So. at 946 (emphasis added).7 These “necessarily large powers of discretion” are
aimed toward enabling the Board to “successfully carry into effect the objects of its creation
... .” Id. at 948. Outside of the constitutional powers bestowed upon the Board, however,
it “is subject to the supervision and control of the Legislature and can exercise, unless the
Constitution otherwise provides, only such powers as may be delegated to it by the
Legislature.” Clark, 105 So. at 505. See also Bobo, 46 So. at 824 (“the Legislature has the
amplest power to change, alter, and modify the machinery of a board like [the Levee Board],
so long as it does not trench upon any constitutional rights that such board may have ... .”).
¶15. Regarding the discretionary powers of the Board, this Court stated in Bobo that:
[q]uite an array of authorities is cited to the proposition that bodies of legislative creation, like this levee board, are entitled to the protection of the courts so far as their autonomy, their property, and internal affairs are concerned; that these are matters which are committed by the Constitution to
7 According to Webster’s Third New International Dictionary, “plenary” is defined as “complete in every respect: Absolute, Perfect, Unqualified.” Webster’s Third New International Dictionary p. 1739 (1986).
13 the discretion of the governing body of the levee board; that this board, by the provisions of the Constitution, is granted absolute protection in the possession, control, and disposition of its property; and that, whilst it may be a public corporation, as distinguished from a private corporation, and in political and governmental matters may be the representative or auxiliary of the state, nevertheless it is a separate and distinct corporation in all other matters, entirely independent of the state, with property rights which are protected, and of which it cannot be deprived without due process of law. The general principle here announced is also sought to be fortified by the case of Aberdeen Academy v. Aberdeen, 13 Smedes & M. 645. There is no sort of doubt as to the correctness of the general principle announced in these decisions.
46 So. at 823 (emphasis added) (although the principle had no application to the act at issue
in Bobo, which this Court found did not deprive the Board of any of its property or deny it
any due process of law). But see Gully v. Williams Bros., 182 Miss. 119, 180 So. 400, 404
(1938) (pointing out that the Aberdeen Academy decision cited in Bobo, which “involved
the right of the Legislature in 1850 to divert liquor license funds from the municipality to
which it had been granted by the charter of the city of Aberdeen in 1837; which funds the
Legislature in 1848 undertook to divert from the city to the academy,” was “overturned,
although not expressly overruled, in the case of State Board of Education v. Aberdeen, 56
Miss. 518 ... .”).
¶16. Therefore, this Court will first examine whether Section 7(4) violated any specific
constitutional authority granted to the Board. This is a threshold consideration because “a
state constitution does not grant specific legislative powers, but limits them, and ... the
lawmaking department possesses all legislative powers not prohibited or restricted by the
state or federal constitution, and certainly the power extends to circumstances not covered
by the constitutions at all.” Farrar v. State, 191 Miss. 1, 2 So. 2d 146, 148 (1941). See also
14 Albritton, 178 So. at 803 (“The legislative department is primarily charged with the duty of
determining by what means [the promotion of the welfare of its citizens] can be
accomplished. To that end it is invested, by [Article 4,] section 33 of our State Constitution,
with all legislative power, except in so far as other sections of the Constitution place a
limitation thereon.”); Bobo, 46 So. at 824; Clark, 105 So. at 505. In Franklin, for instance,
this Court found chapters 169 8 and 170 9 of the Acts of 1922 “constitutional as a reasonable
regulation of the affairs of the board. The Legislature has the right to prescribe, alter, or
change at its discretion the procedure and method of operation of the board, so long as it does
not infringe upon the proper and efficient exercise of the power granted the levee
commissioners by the Constitution.” 130 Miss. at 164, 93 So. at 740. Moreover:
the control of the purse strings of government is a legislative function. Indeed, it is the supreme legislative prerogative, indispensable to the independence and integrity of the Legislature, and not to be surrendered or abridged, save by the Constitution itself, without disturbing the balance of the system and endangering the liberties of the people. The right of the Legislature to control the public treasury, to determine the sources from which the public revenues shall be derived and the objects upon which they shall be expended, to dictate
8 “Chapter 169 provides that, except in cases of emergency ... , the board is required to let all contracts for material and work in connection with the maintenance or repair of the levees by advertisement for three weeks in a newspaper, and the board shall receive bids for said work and award the contract to the lowest responsible bidder.” Franklin, 130 Miss. at 164, 93 So. at 739. 9 “Chapter 170 provides that the board shall have a president, a chief engineer, an assistant chief engineer, an attorney or firm of attorneys, a pump engineer, a secretary and treasurer, a caretaker, and such other clerical and stenographic help as needed, and such common laborers as may be deemed necessary to carry on the work of the board, but that said board shall have no other paid officers or employees, except in cases of emergency. The act then prescribes that the salary or compensation of the officers and employees shall be fixed by the board within certain limitations ... .” Franklin, 130 Miss. at 164, 93 So. at 739.
15 the time, the manner, and the means both of their collection and disbursement, is firmly and inexpugnably established in our political system.
Colbert v. State, 86 Miss. 769, 39 So. 65, 66 (1905) (emphasis added). Therefore, Board
funds are properly considered subject to legislative control absent constitutional provisions
otherwise.
¶17. The State not only contends that Section 7(4) did not violate any specific
constitutional authority granted to the Board, it further asserts that the constitutional
provisions of Article 11, Section 227 et seq. support its passage. It points to the specific
language in Article 11, Section 237;10 Article 11, Sections 235 11 and 239;12 and Article 11,
Section 234 13 to support its argument that the Legislature was constitutionally empowered
to enact bills affecting Board revenues.
10 Article 11, Section 237 states: “[t]he legislature shall have full power to provide such system of taxation for said levee districts as it shall, from time to time, deem wise and proper.” Miss. Const. art. 11, Section 237 (emphasis added). 11 Article 11, Section 235 states: “[e]ach levee board shall make, at the end of each fiscal year, to the governor of this state, a report showing the condition of the levees and recommending such additional legislation on the subject of the system as shall be thought necessary, and showing the receipts and expenditures of the board, so that each item, the amount and consideration therefor, shall distinctly appear, together with such other matters as it shall be thought proper to call to the attention of the legislature.” Miss. Const. art. 11, Section 235. 12 Article 11, Section 239 states: “[t]he legislature shall require the levee boards to publish at each of their sessions an itemized account embracing their respective receipts since the prior session, and such appropriations as have been made or ordered by them respectively, in some newspaper or newspapers of the district.” Miss. Const. art. 11, Section 239. 13 See paragraph 3 for the text of Article 11, Section 234.
16 ¶18. The State also points out that since the Board was created in 1884, the Legislature has
passed over 140 bills regulating its affairs, including its financial affairs. For instance, the
Legislature has regulated the manner and amount of bonds the Board could raise pursuant
to state law, see Chapter 60 of the Laws of 1892 (adopted April 1, 1892); authorized the
Board to spend funds on particular projects and regulated the salaries payable to Board
employees, see, e.g., Chapter 81 of the Laws of 1894 (adopted February 7, 1894), Chapter
170 of the Laws of 1922 (adopted March 31, 1922); and directly appropriated general funds
of the State to the Board, see Chapter 61 of the Laws of 1918.14 In sum, the State argues that
Section 7(4) is simply another constitutional manifestation of the Legislature’s power in
regulating the financial affairs of the Board. As legislative control over the Board’s financial
affairs has repeatedly occurred since its inception, it contends the financial affairs addressed
in Section 7(4) are also “subject to [the Legislature’s] supervision and control.” See Clark,
105 So. at 505.
¶19. The Board counters that the plain language of Article 11 renders Section 7(4) facially
unconstitutional. Article 11, Section 229 states:
There shall be a board of levee commissioners for the Yazoo-Mississippi delta levee district which shall consist of two members from each of the counties of Coahoma and Tunica, and one member from each of the remaining counties, or parts of counties now or hereafter embraced within the limits of said district.
Miss. Const. art. 11, Section 229. See also Yazoo & M.V.R., 195 So. at 706 (“[u]nder
Section 227 et seq. of the Constitution, this levee district is in the same situation as if it had
14 See footnote 3 for the text of Section 2 of Chapter 61, Laws of 1918 - House Bill No. 33.
17 been originally created by the Constitution ... .”). The Board asserts that this language
effectively acts as a constitutional charter. As such, the Board contends the language of
Article 11 pertaining to the Board takes on a constitutional character. Article 11, Section 232
states, “[t]he commissioners of said levee districts shall have supervision of the erection,
repair, and maintenance of the levees in their respective districts ... .” Miss. Const. art. 11,
Section 232 (emphasis added). See also Ham, 35 So. at 946 (“it was the intention to vest the
boards of levee commissioners with plenary authority to deal with the ‘erection, maintenance
and repair’ of the levee system at their discretion, for the purpose of protecting the property
of their respective districts from loss and destruction.”) (emphasis added). In the estimation
of the Board, it can only meet this constitutional obligation of erecting, repairing, and
maintaining the levees if it controls the revenues acquired within the District for levee
purposes. While it concedes that Article 11, Sections 236 and 237 grant the Legislature
limited power over the “system of taxation,” 15 the Board asserts that all tax revenues
therefrom are to be paid directly to the Board “for levee purposes.” 16 See also Bobo, 46 So.
at 823 (“bodies of legislative creation, like this levee board, are entitled to the protection of
the courts so far as their autonomy, their property, and internal affairs are concerned; that
these are matters which are committed by the Constitution to the discretion of the governing
body of the levee board; that this board, by the provisions of the Constitution, is granted
15 See footnote 10. 16 Article 11, Section 236 provides for legislatively imposed levee taxes “for levee purposes” to “be paid into the treasury of the levee board of the district in which the land charged with the same is situated ... .” Miss. Const. art. 11, Section 236.
18 absolute protection in the possession, control, and disposition of its property ... .”) (emphasis
added). In other words, the power of the Legislature extends only to the system of taxation,
and not control over the Board’s revenues. Therefore, the Board asserts Section 7(4), which
directs funds of the Yazoo-Mississippi Delta Levee District to the Budget Contingency Fund
of the State, to be an unconstitutional act of legislative control because it was wrought in
direct contravention of the express constitutional provisions of Article 11. In support, the
Board cites Board of Trustees of State Institutions of Higher Learning v. Ray, 809 So. 2d
627, 637 (Miss. 2002), for the proposition that, “[w]hile ... the legislature possesses the
power to take away by statute what has been given by statute, the same cannot be said for that
created by the Constitution. To allow this would be an affront to our Constitution.” See also
Bobo, 46 So. at 824 (“the Legislature has the amplest power to change, alter, and modify the
machinery of a board like [the Levee Board], so long as it does not trench upon any
constitutional rights that such board may have ... .”). As a “constitutionally-created entity”
rather than a “statutorily-created entity” by virtue of Article 11, the Board insists that Section
7(4) unconstitutionally usurps the Board’s control over its own revenues.
¶20. The State replies that the express constitutional provisions of Article 11 relied upon
by the Board lack sufficient clarity regarding the constitutionality of Section 7(4). It asserts
that the Board’s authority under Article 11 to supervise the “erection, repair, and
maintenance” of the levees does not immunize it from legislative control over its funds.
Because any “doubt regarding the constitutionality of an act is to essentially declare it
constitutionally valid,” Moore, 658 So. 2d at 887 (citing Ivy, 70 So. 2d at 865), the State
19 asserts that the Legislature also had the inherent constitutional authority to enact Section
7(4).17
¶21. The State contends that any attempt to limit the Legislature’s power over the revenues
of the Board must be express. See Farrar, 191 Miss. at 1, 2 So. 2d at 148 (“a state
constitution does not grant specific legislative powers, but limits them, and ... the lawmaking
department possesses all legislative powers not prohibited or restricted by the state or federal
constitution, and certainly the power extends to circumstances not covered by the
constitutions at all.”). For example, Article 8, Section 206A of the Mississippi Constitution
places certain education funds beyond the Legislature’s budget authority. See Miss. Const.
art. 8, Section 206A. Because Article 11 contains no such express restriction,18 the State
asserts that the funds at issue were subject to the inherent constitutional authority of the
Legislature.
¶22. To establish that Board funds are public funds “within the exclusive province of the
legislature,” id., the State argues that the Board is simply a state agency. See Nugent v.
Board of Mississippi Levee Com’rs, 58 Miss. 197, 1880 WL 6893 at *8 (1880) (prior to the
Mississippi Constitution of 1890, this Court found that “in this case it is clear that the
Legislature intended merely to create a State agency. ... [The Board of Mississippi Levee
17 Note that if specific constitutional authority exists regarding the provisions of Section 7(4), any discussion of inherent constitutional authority is moot. This is the position of the Board which dismisses the inherent constitutional authority argument of the State arguing, “general Legislative power cannot be a bootstrap to dispossess the Levee Board of the plenary authority expressly granted by the Constitution.” 18 Rather, the State argues Article 11 expressly permits the Legislature to enact bills affecting the Board’s financial resources.
20 Commissioners] has merely administrative duties to perform - a work prescribed by the
Legislature, and with means furnished by the Legislature.”).19 The Board points to the
constitutionally vested authority of the Levee Board to establish its place as an autonomous
branch of government. See Yazoo & M.V.R., 195 So. at 706 (“[u]nder Section 227 et seq.
of the Constitution, this levee district is in the same situation as if it had been originally
created by the Constitution ... .”). The State, however, replies that the Board is analogous to
the Board of Trustees of State Institutions of Higher Learning (“Board of Trustees”), which
was made a constitutional body by constitutional amendment in 1944. See Van Slyke v.
Board of Trustees of State Institutions of Higher Learning, 613 So. 2d 872, 877 (Miss.
1993) (citing State ex rel. Allain v. Board of Trustees of Institutions of Higher Learning,
387 So. 2d 89, 91 (Miss. 1980)). In Allain, this Court described the Board of Trustees as “a
constitutionally created state agency.” 387 So. 2d at 91. As such, this Court found in Van
Slyke that the chancellor did not err in “finding that the Board of Trustees is part of the
executive branch of government, rather than an autonomous or fourth branch of
government.” 613 So. 2d at 877. Moreover, the State points out that the Board has been
characterized as part of the executive branch rather than an autonomous branch of
government. See Haley, 108 Miss. at 899, 67 So. at 499 (“[w]e think the board of levee
commissioners belongs to the executive department ... .”).20 Therefore, the State claims that
19 The State also notes that Board employees participate in the state retirement system (“PERS”). 20 The Board contends that Haley stands only for the proposition that under Article 1, Sections 1 and 2 of the Mississippi Constitution, an individual cannot remain on the Board of Supervisors (a judicial branch) when appointed as a Levee Commissioner (a non-
21 the funds of the Board are public funds, subject to legislative control absent explicit removal
from the inherent budget authority of the Legislature, and the absence of any specific
prohibition to legislation like Section 7(4) thus creates reasonable doubt which must be
resolved in favor of Section 7(4)’s constitutionality. See Moore, 658 So. 2d at 887 (citing
Ivy, 70 So. 2d at 865) (“doubt regarding the constitutionality of an act is to essentially declare
it constitutionally valid ... .”).
¶23. The State further argues that if the Board is a state agency whose funds are subject to
legislative control by virtue of the absence of constitutional provisions otherwise, then Board
revenues may be used for non-levee purposes. The Board counters that in Nugent this Court
found that the revenue of the Board consists solely:
of taxes levied by the Legislature, to be expended solely in the performance of the public duty of protecting the district from overflow. ... This fund is ... raised by a specific tax - a mode of taxation authorized by the Constitution only for the erection of works of this character; and this stamps it essentially as a trust fund devoted exclusively to the work provided for.
58 Miss. 197, 1880 WL 6893 at *8. In other words, “[the] expression of the purpose of the
tax in the act is an exclusion of all other purposes.” Id. at *12. See also Board of Levee
Com’rs v. Hemingway, 66 Miss. 289, 6 So. 235, 236 (1889).21 While both Nugent and
Hemingway preceded the Constitution of 1890, the Board asserts that the principles therein
remain applicable under Lowe v. Board of Levee Com’rs for Yazoo-Mississippi Delta, 19
So. 346 (Miss. 1896), which was “covered and controlled” by the Nugent decision. Id.
judicial branch). See id. at 498. 21 The State contends that the characterization of levee funds in Hemingway is fact- specific to the appropriation act at issue in that case.
22 ¶24. The State contests the Board’s assertions, citing prior holdings of this Court regarding
legislative control over “the purse strings of government.” See Colbert, 39 So. at 67 (“we
are constrained to believe that the Constitution regards the Legislature as the sole repository
of power to make appropriations of moneys to be paid out of the state treasury.”) (emphasis
added); Washington County v. Board of Miss. Levee Com’rs, 171 Miss. 80, 156 So. 872,
873 (1934) (regarding the appropriation of certain sixteenth section lands for levee district
purposes, “[i]t appears to be well-settled that, in the absence of constitutional prohibition, the
Legislature may authorize the taking of property devoted to a public use for a different public
use ... .”); Bailey, 236 So. 2d at 423 (“[t]he appropriation of public funds is traditionally
within the exclusive province of the legislature.”) (emphasis added). In sum, the State asserts
that all state agencies using funds for a particular purpose are administering a public trust,
yet this alone does not preclude legislative control over the direction of those funds.
¶25. The Board faces a high burden because “under Mississippi law a party challenging
the constitutionality of a statute must prove unconstitutionality beyond a reasonable doubt.”
Cities of Oxford, 704 So. 2d at 65 (citing Wiesenberg, 633 So. 2d at 989; Goudy, 459 So.
2d at 263). Nonetheless, “no citation of authority is needed for the universally accepted
principle that if there be a clash between the edicts of the constitution and the legislative
enactment, the latter must yield.” Newell v. State, 308 So. 2d 71, 77 (Miss. 1975). This
Court must determine whether Section 7(4) conflicts with the language of the constitution.
¶26. Section 7(4) clearly conflicts with the language of the Mississippi Constitution of
1890, Article 11, Sections 232 and 236. Article 11, Section 232 gives the Board “plenary
23 authority to deal with the ‘erection, maintenance, and repair’ of the levee system ... .” Ham,
35 So. at 946. Article 11, Section 236 expressly prohibits the use of Board funds for non-
levee purposes. Since Section 7(4) mandates Board funds be converted to the Budget
Contingency Fund for use other than levee purposes (the erection, maintenance, and repair
of the levee system), the Legislature overstepped the bounds of its constitutionally imposed
limitation.
¶27. Prior to the adoption of the Mississippi Constitution of 1890, the Board was simply
viewed as a state agency. See Nugent, 58 Miss. at 197. In the Mississippi Constitution of
1890, the Board is referred to as a “board.” Miss. Const. art. 11, Section 229. Following
adoption of the Mississippi Constitution of 1890, the Board was viewed as a constitutionally-
created organization, see Yazoo & M.V.R., 195 So. at 706, but also as a part of the executive
branch. See Haley, 108 Miss. at 899, 67 So. at 499. While the Board is subject to legislative
control absent constitutional provision otherwise, see Clark, 105 So. at 505; Bobo, 46 So.
at 824, the framers did not grant legislative authority to frustrate the purposes of a
constitutionally-created organization. While the Legislature does have the power to tax and
appropriate, see Colbert, 39 So. at 66, that power is limited by the Mississippi Constitution
with respect to Board funds. See Miss. Const. art. 11, Section 236; Bobo, 46 So. at 824. In
short, Article 11, Section 236 does not permit the Legislature to take Board funds which are
constitutionally mandated for levee purposes, and redirect them toward non-levee purposes.
To hold otherwise would subvert the Mississippi Constitution. Therefore, while the
24 Legislature is empowered to seek amendments to the Mississippi Constitution if they so
desire, until that time, this Court finds Section 7(4) unconstitutional.
¶28. Since Section 7(4) has been declared unconstitutional, the remaining issues are moot,
and this Court declines to address them.
CONCLUSION
¶29. “[U]nder Mississippi law a party challenging the constitutionality of a statute must
prove unconstitutionality beyond a reasonable doubt.” Cities of Oxford, 704 So. 2d at 65
(citing Wiesenberg, 633 So. 2d at 989; Goudy, 459 So. 2d at 263). Nonetheless, “no citation
of authority is needed for the universally accepted principle that if there be a clash between
the edicts of the constitution and the legislative enactment, the latter must yield.” Newell,
308 So. 2d at 77. This Court finds that Section 7(4), in authorizing the use of Board funds
for non-levee purposes, plainly conflicts with the clear language of Article 11, Sections 232
and 236 of the Mississippi Constitution of 1890 and, therefore, is unconstitutional.
¶30. AFFIRMED.
SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES, AND DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.